“A man being shot at by another man”

Robert J. Divelbiss, Oct. 2012

After nearly two years in the Stark County Jail, Robert J. Divelbiss might actually have a trial date this week on charges he faces for allegedly trying to kill his brother-in-law on the farm where he had been living.

That’s expected to be one of the outcomes of the court hearing scheduled for Friday (July 18) on the 57-year-old rural Bradford man’s charges of attempted murder, aggravated battery, aggravated discharge of a firearm, and possession of firearms without a FOID card.

A pre-trial period that has been unusually prolonged – even for a small jurisdiction like Stark County, which typically schedules jury trials only three times a year – should have a designated end after that hearing, said Public Defender Robert McBride.

“On the 18th, we will set the case for jury trial at a near future date,” McBride said.

It’s been nearly 21 months since police responded to reports that, “There was a man being shot at by another man,” as Sheriff’s Sgt. Charles Demetreon put it in testimony at a recent hearing. Since then, the defendant has been in custody in lieu of $750,000 bond.

Divelbiss has spent two June 14 birthdays in jail. About a year into his stay, he was reported to have gained about 100 pounds.

Robert J. Divelbiss was escorted into the Stark County Courthouse by Sheriff Jimmie Dison for a hearing in Nov. 2013.

The man being shot at on Oct. 24, 2012, was the defendant’s brother-in-law, Steven Chesser, who owns the farm where Divelbiss had been living, authorities say. Wounded in the arm that night, Chesser was treated and released at a hospital.

Police found both a pistol and a shotgun in the house with Divelbiss that night, and he told Demetreon that he had been the one doing the shooting, the officer has testified. Divelbiss also allegedly – and infamously – said, “I hope he’s dead.”

That’s almost never a good thing for jurors to hear an attempted murder defendant say, and McBride tried recently and unsuccessfully to get it suppressed from evidence on the grounds that Divelbiss was in police custody but had not been read his Miranda rights against self-incrimination when he allegedly made that statement in response to a question about where Chesser was when police got there.

“He was actually cuffed up when that question was asked,” McBride noted during the July 1suppression hearing.

Circuit Judge Thomas A. Keith

Circuit Judge Thomas Keith rejected the argument. For Miranda rights to be in effect, the defendant would have to be not only in custody but being interrogated, the judge ruled.

“They were voluntary statements that were not made in response to an interrogation,” Keith concluded.

Generally low-key in the courtroom, McBride felt strongly enough that he even engaged in a bit of back-and-forth debate with Keith. He later apologized.

“This has been a tough case,” McBride observed.

McBride’s motion to suppress, along with some supporting documents and Keith’s order denying it, can be read here: divelbisssuppress

The suppression motion had been the latest defense effort to steer the case away from an outcome that would include a full confrontation with the charges. If convicted of attempted murder with a firearm, he could face up to 50 years in prison, presumably more than enough for a life sentence.

One reason the case has been pending so long has involved the defendant’s reported long history of mental health issues. A family member had called attention to that early on, and a previous judge granted McBride’s request for a fitness exam early in the case.

Dr. John Day, a Peoria clinical psychologist found Divelbiss fit for trial in Jan. 2013, and he finally entered a not guilty plea at that time. But information emerging later indicated that Day had not known about the defendant’s past treatment in a Missouri mental hospital, because Divelbiss himself had not told him, and that fact had not been included in any records.

That was when a heavy dose of bureaucracy entered the case. Day agreed to consider any supplemental information about that history, but several months passed before the records were obtained, because they were sent from one agency to another before reaching the relative authorized to receive them.

And when they finally arrived in Stark County, they ultimately made no difference. Though details about Divelbiss were never publicly discussed, Day’s conclusion about his mental fitness remained the same, and a private exam that had been separately arranged by the family produced the same result.

In Illinois, a defendant is considered unfit only if “unable to understand the nature and purpose of the proceedings against him or to assist in his defense.” So a person can have some significant issues and still be fit for trial.

Which appears to be the point Divelbiss now finds himself approaching. McBride had indicated at the suppression hearing that he might seek an interlocutory appeal on the Miranda ruling – a request that an appellate court consider and decide the legal issue before the case goes to trial.

But he said more recently that doing so would not be an option. That step is allowed only in certain limited circumstances, and this is not one.

“I contacted the state appellate defender’s office to see if there is any newly created avenue for the defense to seek interlocutory appeals on such matters, and there is not,” McBride said. “The state can take interlocutory appeals in certain instances but not the defense.”

So 12 good Stark County citizens and true may soon be getting to know Robert Divelbiss a bit better and effectively deciding where he spends the rest of his life. If convicted, leaving his Stark County cell could mean entering a tunnel without much light at the end.

Gary L. Smith can be reached at (800) 516-0389 or glsmith@mtco.com. Follow him on Twitter @Glsmithx.

Author: Gary L. Smith

Gary L. Smith is a free-lance writer who has contributed regularly to the Journal Star since 1993. He reports primarily on events in Marshall, Putnam, and Stark Counties, and the name of this blog is derived from the way that judges in the Peoria-based 10th Judicial District refer to that area.
View all posts by Gary L. Smith